NAHB Seeks Nationwide Injunction on WOTUS Rule

Filed in Environmental, Land Development, Legal by on February 8, 2018 1 Comment

statue of justiceNAHB joined a broad coalition of farmers, miners and foresters Feb. 7 to ask the U.S. District Court in Texas to issue a nationwide preliminary injunction prohibiting the federal government from enforcing or implementing the 2015 WOTUS rule, which defines the extent of the Environmental Protection Agency and Army Corps of Engineers’ regulatory jurisdiction under the Clean Water Act.

The rule has been stayed since October 2015 when the Sixth Circuit issued a nationwide injunction that kept the EPA from enforcing the rule and allowed the 1986 definition to remain in effect. Then in September 2015, the District Court in North Dakota enjoined the rule from taking effect in 13 states.

Both courts ruled that allowing it to come into force and effect would cause irreparable injury to regulated entities, including home builders.

After the Supreme Court’s January decision holding that only the district courts have jurisdiction to hear challenges to the rule, NAHB and its coalition partners  believed it was imperative to obtain a nationwide injunction.

The coalition motions explains that the WOTUS rule is likely unlawful for three reasons.

  • EPA and the Corps violated federal regulations regarding appropriate notice and comment, putting at a disadvantage the builders, miners and farmers directly affected by the rule.
  • The rule is inconsistent with the language in the Clean Water Act (CWA)and scientific evidence, making it “arbitrary and capricious,” the motion says. “In its most recent CWA cases, the Supreme Court could not have been more clear that the word ‘navigable’ continues to have meaning under the CWA, and yet the WOTUS rule asserts jurisdiction over countless isolated waters and desiccated land features.”
  • The rule is unconstitutionally vague because it does not provide fair notice to the regulated community and allow regulators to act in arbitrary and discriminatory ways.  “The definition of ‘ordinary high water mark,’ for example, turns on factors like ‘changes in the character of soil’ and ‘presence of litter and debris’ and allows bureaucrats to rely on whatever ‘other . . . means’ they deem ‘appropriate’ in deciding when a high water mark is present and where it lies,” the motion says.

“Plaintiffs and their members must be able to plan their operations often years in advance of beginning projects and putting employees to work,” the motion says. “Such planning requires, first and foremost, stable and predictable legal rules—and that much-needed stability and predictability will undeniably be absent if the definition of ‘waters of the United States’ is constantly changing with every court decision on every challenge to every intervening rulemaking. It is no exaggeration to say that billions of dollars and many thousands of jobs hang in the balance.”

For additional information, contact Tom Ward at 800-368-5242 x8230

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  1. Dave VanDyke says:

    We used to be able to store some water for detention
    in the wetland area, now we can’t store or detain
    any water in the wetland area. This creates a big
    hardship because the wetland is the lowest elevation
    and it’s where everything naturals drains to. When
    we could detain water in the wetland at least we got
    some value out of the wetland now we have to loose
    good development land for our detention the
    crazy thing is the water from the detention ponds
    all ends up there over a few hours at a release
    rate. Storing 1 to 2 feet of water in a wetland area
    for 24 hrs does no damage to the wetland . We
    have actually had situations where we have dug
    the new pond and diverted water away from the
    wetland and over the next year the wetland Dryden
    up and was no longer a wet land. Not allowing
    water to be detained in the wetland area is just
    stupid and counter productive to maintaining
    a wetlands hydration and is a huge extra cost to
    developers . Please change the rule back so we
    can store or detain water in the wetland area.

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